Circumcision is a Crime

A devout Muslim physician in Cologne circumcised a four-year-old boy in a professional manner, as the boy’s parents had requested. A medical indication did not exist. Two days later, as “normally” can happen, secondary bleeding occurred. The mother brought her son to the University Hospital Cologne where the bleeding was successfully stopped. Prosecuting authorities caught wind of this event and filed a suit on the grounds of §223StGB against the physician. LG2G briefly explains how and why the courts reacted.

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This case was first tried in AG Cologne and a verdict came on September 21, 2011 (re 528 Ds 30/11). The defendant was acquitted because of the religious motives and the consent of the child’s parents; the doctor did not commit any injustice. Further, it cannot be ignored that circumcisions have great importance for hygienic reasons in the Anglo-American world.

The LG Cologne (re 151 Ns 169/11) dismissed an appeal by the prosecuting authority on May 07, 2012. Also this court ruled that a circumcision constitutes bodily harm. The consent of the parents does not justify the criminal nature of this irreversible intervention because it is in conflict with the well-being of the child. The parents’ argument cannot overrule the fact that the child may be stigmatized by social exclusion. It does not counterbalance the infringed integrity of the child. Pursuant to the balancing of the child’s constitutional right of physical integrity and the parents’ right of education (art. 6GG, §1631 I 1 BGB) as well as practicing religion (art. 4 GG), it can be expected that they wait until the child can decide for himself either in favor or against circumcision.

The Regional Court Cologne dismissed the case because the physician was unaware of the wrongful nature of a circumcision. Since his mistake was unavoidable, he was not to be punished (§17cl. 1 StGB). The legality of a circumcision has been vigorously discussed with differing results in the professional literature and case law. In practice, this means that a defendant can reasonably argue that he did the best according to his conscience and knowledge. This judgment sets a precedent that dissolves any legitimate any legitimate ignorance of the law. Though this decision is not binding on other courts, it will influence future case law.

Remarks

Following the courts’ logic, piercing the ears of a little girl will also constitute - bodily harm. This will have to be punished even more severely than a religiously motivated piercing. The reason for piercing girls’ ears is purely traditionally motivated, as it is customary in Germany that parents embellish their daughters with earrings. From a legal standpoint, circumcising and ear piercing both constitute bodily harm. In both cases, the legal values of “religious practices,” resp. tradition and “bodily integrity” are in conflict. There is no legal difference between these two alterations of the body. The only difference is the severity (and visibility) of the intervention, but both interventions can be easily professionally performed. The legal qualification as unjustified remains incomprehensible to us.

Legal Comment

The legal consequence for physicians in the future is: circumcisions will be prosecuted and punished. A physician can no longer rely on the argument of not knowing the criminal nature of circumcisions – because of this judgment. The only legal circumcision is one for medical reasons.

What is best for a child is in discussion among physicians. It is beyond dispute that circumcision enables better hygiene, but as the expert in the trial said, ”in Central Europe there is no need for circumcision for hygienic reasons“. Even in modern medicine it is a question of belief. Disregarding those facts, the question of “what is best for the child” cannot mean that a hidden cut of the skin not endangering the boy’s life or limb is to be decided by courts. As long as the child is not endangered, the constitution gives parents the right to raise their child as they deem best. The state’s objective does not entitle it to intervene when no serious harm is being done to one of its citizens. It is not a question of whether or not circumcision is medically advantageous. The question is, does it harm the child?

The issue has not been resolved by this judgment and the belief in circumcision remains widespread in the Islamic and Jewish faiths. The parents’ wish for circumcision remains. In 2006, a Turkish pensioner living in Germany was sentenced to a fine because he, as a non-physician, performed circumcisions. He argued that he was a respected circumciser in Turkey, where the circumciser is a profession next to physicians for just this one special purpose.